Articles, Alerts & Perspectives

Environmental Alert
(by Lisa M. Bruderly, Janet L. McQuaid, Gary E. Steinbauer)
Late last week, a South Carolina district court reinstated the Obama administration’s 2015 Clean Water Rule (referring to it as “the 2015 WOTUS rule”) in 26 states, including Pennsylvania, Ohio, New York, Maryland, New Jersey and the New England states.  The decision overturns a move by the Trump administration earlier this year to delay the applicability date of the 2015 WOTUS rule until early 2020 and brings the Rule’s definition of “waters of the United States” (WOTUS) into effect in these states, at least for the time being.  Unless the South Carolina decision is overturned or invalidated, the reinstatement of the 2015 definition of WOTUS could have significant Clean Water Act (CWA) permitting, compliance and enforcement implications for regulated entities in these 26 states, given that the 2015 definition of WOTUS is widely regarded by industry as unreasonably expanding the types of waterbodies under U.S. EPA and U. S Army Corps of Engineers’ jurisdiction.
Background Regarding the Clean Water Rule
Shortly after the August 28, 2015 effective date of the 2015 WOTUS rule, the Rule was challenged in federal courts, including the Sixth Circuit. While the Sixth Circuit preliminarily enjoined the Rule in October 2015 (See Ohio v. United States Army Corps of Eng’rs, 803 F.3d 804 (Oct. 9, 2015)), on January 22, 2018, the Supreme Court invalidated the Sixth Circuit’s preliminary injunction, holding that the district courts, rather than the courts of appeal, had original jurisdiction over the appeals (S.Ct. 16-299). Nat’l Ass’n of Mfrs. v. DOD, 138 S. Ct. 617 (2018).
In anticipation of the Sixth Circuit vacating its preliminary injunction (and the 2015 WOTUS rule coming into effect in all but then 13 states), on January 31, 2018, EPA and the Corps finalized a rule setting an applicability date for the 2015 WOTUS rule of February 6, 2020.  …

The Legal Intelligencer

(by Lizzy McLellan)

With its latest lateral hires, Pittsburgh-based Babst, Calland, Clements and Zomnir is doubling down on emerging technologies, including driverless vehicle technology.

The firm this week hired shareholder Justine Kasznica in its mobility, transport and safety group, as well as its corporate and commercial group. Also joining are intellectual property shareholder Carl Ronald and associate Michael Fink, also in the corporate and commercial group.

Kasznica’s practice is focused on unmanned aircraft, driverless cars and space companies. She and Ronald are both joining from Baer Crossey McDemus, a business and technology law boutique with offices in Philadelphia and Pittsburgh. Fink was an associate at Buchanan Ingersoll & Rooney.

The additions come a month after Babst Calland added William Godfrey, who was a senior U.S. federal regulatory chief at the National Highway Traffic Safety Administration.

“When I was approached by a recruiter who talked about Babst Calland, I had known of them as an oil and gas, environmental firm,” Kasznica said. But she quickly learned that the firm was also investing in its technology-related practices. A major selling point, she said, was that Babst Calland last year had hired Timothy Goodman, a former U.S. Department of Transportation lawyer, in Washington, D.C. He now leads the firm’s mobility, transport and safety group.

“In working with frontier technology, you’re essentially required to try to understand and work alongside policy and regulations that are either nascent, nonexistent or present but need to be adapted,” Kasznica said. “The channel to Washington, D.C., and the fact that Babst Calland has strategically built and focused on building that office … is absolutely critical and critical for the companies that will be working with us.”

Kasznica grew up interested in model aircraft and aviation, she said, then began to learn more about robotics during law school, through a friend of hers at Carnegie Mellon University. …

Babst Calland is pleased to announce that five lawyers were selected as 2019 Best Lawyers “Lawyer of the Year” in the Pittsburgh, Pa. and Charleston, W. Va. Only a single lawyer in each practice area and designated metropolitan area is honored as the “Lawyer of the Year,” making this accolade particularly significant.

Receiving this designation reflects the high level of respect a lawyer has earned among other leading lawyers in the same communities and the same practice areas for their abilities, professionalism, and integrity. Those named to the 2019 Best Lawyers “Lawyer of the Year” by BL Rankings include:

Kevin J. Garber, Natural Resources Law “Lawyer of the Year” in Pittsburgh, Pa. – In addition to the “Lawyer of the Year” award, Kevin Garber was also listed in the 2019 Edition of The Best Lawyers in America in Environmental Law, Energy Law, Water Law, and Litigation – Environmental.

Joseph K. Reinhart, Environmental Law “Lawyer of the Year” in Pittsburgh, Pa. – In addition to the “Lawyer of the Year” award, Joseph K. Reinhart was also listed in the 2019 Edition of The Best Lawyers in America in Natural Resources Law, Energy Law, and Litigation – Environmental.

Mark D. Shepard, Litigation – Environmental “Lawyer of the Year”  in Pittsburgh, Pa. – In addition to the “Lawyer of the Year” award, Mark D. Shepard was also listed in the 2019 Edition of The Best Lawyers in America in Commercial Litigation and Bet-the-Company Litigation.

Timothy M. Miller, Litigation – Environmental “Lawyer of the Year” in Charleston, W.Va. – In addition to the “Lawyer of the Year” award, Timothy Miller was also listed in the 2019 Edition of The Best Lawyers in America in Commercial Litigation, Bet-the-Company Litigation, Oil and Gas Law, and Litigation – Environmental. …

Pipeline Safety Alert

(by James Curry, Keith Coyle, and Brianne Kurdock)

On July 31, 2018, the Pipeline and Hazardous Materials Safety Administration (PHMSA or the Agency) published an advance notice of proposed rulemaking (ANPRM) in the Federal Register asking for public comment on whether the Agency should change its class location requirements for gas pipeline facilities.  Specifically, PHMSA is seeking comment on alternatives to pipe replacements driven by class location changes.  Adopted nearly five decades ago, PHMSA’s class location requirements use population density and surrounding land uses to categorize the potential risk that gas pipeline facilities pose to public safety.

The Agency is asking the public to comment on whether the class location requirements should be updated to account for recent developments in the pipeline industry, particularly the widespread use of integrity management (IM) principles and new technologies.  The current regulations require operators to reduce pressure, replace pipe, or conduct hydrostatic pressure testing in response to class location changes, and PHMSA is considering whether other alternatives should be available.  Comments must be submitted to the Agency on or before October 1, 2018.

The ANPRM is PHMSA’s first new pipeline safety rulemaking proceeding in the Trump era.  The Agency began examining the need to modernize the class location regulations several years ago in response to a mandate that Congress included in the Pipeline Safety, Regulatory Certainty, and Job Creation Act of 2011, and PHMSA is framing the ANPRM as an extension of that earlier effort.  The Agency’s decision to issue the ANPRM sends a strong signal about its commitment to President Donald Trump’s regulatory reform agenda and willingness to address an issue of longstanding concern to the pipeline industry. …

Environmental Alert
(by Lisa M. Bruderly and Gary E. Steinbauer)
Nearly one year after officially proposing to repeal the Clean Water Rule (CWR), the landmark 2015 Obama Administration rule that redefined “waters of the United States” and arguably expanded the geographic scope of the Clean Water Act (Act), the U.S. Environmental Protection Agency and the U.S. Army Corps of Engineers (collectively, the “Agencies”) have clarified the legal basis for, and are soliciting additional comments related to, the proposed repeal. On July 12, 2018, the Agencies published a lengthy Supplemental Notice of Proposed Rulemaking (Supplemental Notice) in the Federal Register to clarify, supplement, and seek additional comment on their proposal to permanently repeal the CWR and recodify the regulatory definition of “waters of the United States” that existed before 2015. 83 Fed. Reg. 32227. Interested parties have until August 13, 2018 to submit comments in response to the Supplemental Notice.
As compared with the initial July 2017 proposal (82 Fed. Reg. 34899), the Supplemental Notice is rich in detail and includes significantly more legal analysis and citations, as well as references to and evaluations of documents included in the administrative record for the CWR. For almost every new or more detailed justification for the proposed repeal, the Agencies request comment. Some of the arguments and reoccurring themes for which the Agencies request comment include:

• The CWR exceeds the Agencies’ authority under the Act by (1) failing to give sufficient effect to the statute’s use of the term “navigable” to define the Agencies’ jurisdiction and (2) focusing too much on the biological and environmental importance of wetlands.
• The CWR is a misapplication of the “significant nexus” test for jurisdiction under the Act established by soon-to-be-retired U.S.

…

Alert: PA Environmental Hearing Board Update
(by Jean M. Mosites and Kevin J. Garber)
On July 2, 2018, the Pennsylvania Environmental Hearing Board issued an opinion and order related to a discovery dispute, concluding that no discovery was appropriate in a third-party appeal from an amended settlement agreement under the Hazardous Sites Cleanup Act (HSCA).
The Pennsylvania Department of Environmental Protection signed a prospective purchaser agreement in 2005 with a developer to clean up an abandoned tube manufacturing facility in Chester County, amended the agreement in 2007 and 2010, and published notice of the agreement in 2017 as a settlement under HSCA. Section 1113 of HSCA provides that an appeal of a HSCA settlement agreement must be decided on the administrative record, which is limited to: (1) PADEP’s notice of the proposed settlement, (2) written comments to the settlement, and (3) PADEP’s response to those comments. The Delaware Riverkeeper sought more.
The EHB determined that a party seeking discovery in an administrative record review appeal under Section 1113 of HSCA bears a heavy burden to show discovery is necessary. None of the Delaware Riverkeeper arguments—based on Article I, Section 27 of the Pennsylvania Constitution, as well as allegations of improper procedure and bad faith—met that burden. The full opinion can be found here.
Click here for PDF.

The PIOGA Press

(by Blaine A. Lucas and Robert Max Junker)

In Gorsline, court declines to rule on broader issue of compatibility with uses in residential and agricultural zoning districts, but suggests that municipalities may permit unconventional natural gas drilling in any and all zoning districts

The Pennsylvania Supreme Court published its long-awaited opinion in Gorsline v. Board of Supervisors of Fairfield Township on June 1. Although the majority reversed the Commonwealth Court’s decision affirming the granting of a conditional use for an unconventional natural gas well pad, it did so in a narrow holding, finding that Inflection Energy, LLC did not present enough evidence before the Fairfield Township Board of Supervisors establishing that its proposed unconventional gas well pad was similar to other uses allowed in the township’s Residential-Agricultural Zoning District. Unlike most zoning ordinances, the township’s zoning ordinance did not specifically authorize oil and gas wells. Instead, Inflection had relied upon a “savings clause,” which allowed uses “similar to” the other uses specifically allowed in the R-A District.

Despite headlines and press releases touting the Gorsline decision as a wholesale rejection of oil and gas development in residential and agricultural zoning districts, its ruling was much more limited. In fact, language in both the Gorsline majority and dissenting opinions largely rejects the post-Robinson Township assertion of many shale gas opponents that natural gas wells must be relegated to industrial zoning districts and are fundamentally incompatible with residential or agricultural zoning districts.

Background
In 2013, Inflection submitted a conditional use application to the board seeking to construct a natural gas well site in the township’s R-A District. …